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Camau Frozen Seafood Processing Import Export Corp. v. United States

Court of Appeals of International Trade

July 31, 2013

CAMAU FROZEN SEAFOOD PROCESSING IMPORT EXPORT CORPORATION, et al., Plaintiffs,
v.
UNITED STATES, Defendant, and AD HOC and AMERICAN SHRIMP PROCESSORS ASSOCIATION, Defendant-Intervenors. Slip Op. 13 - 95

Remanding the Final Results of Redetermination Pursuant to Court Remand for further explanation or reconsideration

Matthew R. Nicely, Hughes Hubbard & Reed LLP, of Washington, DC, on behalf of Plaintiffs Camau Frozen Seafood Processing Import Export Corp.; Minh Phu Seafood Corp.; Minh Phat Seafood Co., Ltd.; Minh Qui Seafood Co., Ltd.; and Viet I-Mei Frozen Foods Co., Ltd.

Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, on behalf of Defendant. With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General; Jeanne E. Davidson, Director; and Patricia M. McCarthy, Assistant Director. Of counsel on the briefs was Mykhalo A. Gryzlov, Senior Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Andrew W. Kentz, Jordan C. Kahn, Nathaniel M. Rickard, and Nathan W. Cunningham, Picard Kentz & Rowe LLP, of Washington, DC, for the Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.

Terence P. Stewart, Geert M. De Prest, and Elizabeth J. Drake, Stewart and Stewart, of Washington, DC, and Edward T. Hayes, Leake & Andersson, LLP, of New Orleans, LA, for the Defendant-Intervenor American Shrimp Processors Association.

Before: Donald C. Pogue, Chief Judge

OPINION

Donald C. Pogue, Chief Judge

This case returns to court following remand by Camau Frozen Seafood Processing Import Export Corp. v. United States, __ CIT __, 880 F.Supp.2d 1348 (2012) ("Camau I"). Camau I reviewed challenges to the final results of the fifth administrative review ("AR") of the antidumping duty order covering certain frozen warmwater shrimp from the Socialist Republic of Vietnam ("Vietnam").[2] Id. at 1351. Specifically, Camau I rejected a facial challenge to Commerce's use, in the fifth AR, of its New Labor Methodology, [3] but remanded the Final Results for Commerce to further explain or reconsider its determination to value labor solely on the basis of data from the Bangladesh Bureau of Statistics ("BBS") in light of Commerce's prior surrogate labor policy and the apparent discrepancy between the Bangladeshi labor data and the Philippine labor data on the record. Id. at 1358–61. In the Final Results of Redetermination Pursuant to Court Remand, A-552-802, ARP 09–10 (Apr. 12, 2013), ECF No. 90 ("Remand Results"), Commerce determined that it would continue to value labor solely on the basis of the BBS data.

For the reasons that follow, the court will order a second remand for Commerce to further explain or reconsider its determination to value labor in this case solely on the basis of the BBS data.

The court has jurisdiction pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006)[4] and 28 U.S.C. § 1581(c) (2006).

STANDARD OF REVIEW

"The court will sustain the Department's determination upon remand if it complies with the court's remand order, is supported by substantial evidence on the record, and is otherwise in accordance with law." Jinan Yipin Corp. v. United States, CIT, 637 F.Supp.2d 1183, 1185 (2009) (citing 19 U.S.C. § 1516a(b)(1)(B)(i)).

DISCUSSION[5]

Prior to adoption of the New Labor Methodology, Commerce used multi-country averaging to value labor because "wage data from a single surrogate country does not constitute the best available information for purposes of valuing the labor input due to the variability that exists between wages and GNI. . . . As a result, we find reliance on wage data from a single surrogate country to be unreliable and arbitrary."[6] When Commerce adopted the New Labor Methodology, it did not repudiate this reasoning. Rather, Commerce acknowledged in the New Labor Methodology that "[d]ue to the variability in wage rates among economically comparable [market economy countries], the Department has tried to include wage data from as many countries as possible that were also economically comparable to the [non-market economy country ("NME")] and significant producers of comparable merchandise . . . ." New Labor Methodology, 76 Fed. Reg. at 36, 093; see also Camau I, 880 F.Supp.2d at 1358–59. But, based on its experience in light of Dorbest Ltd. v. United States, 604 F.3d 1363 (Fed. Cir. 2010) ("Dorbest IV") and Shandong Rongxin Import & Export Co. v. United States, __ CIT __, 774 F.Supp.2d 1307 (2011), [7] Commerce concluded that "the base for an average wage calculation would be so limited that there would be little, if any, benefit to relying on an average of wages from multiple countries for purposes of minimizing the variability that occurs in wages across countries." New Labor Methodology, 76 Fed. Reg. at 36, 093. Camau I held this to be a reasonable basis for Commerce's change in policy, 880 F.Supp.2d at 1358; therefore, the decision to change the labor valuation policy is not before the court on review of the Remand ...


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